DATE: 20061117
DOCKET: C44371
COURT OF APPEAL FOR ONTARIO
MOLDAVER, SIMMONS and GILLESE JJ.A.
B E T W E E N :
PETER DUNCAN STEWART, REBECCA ANNE STEWART, JOHN DAVID STEWART, DAVID ALEXANDER STEWART, personally and DAVID ALEXANDER STEWART as Estate Trustee for the Estate of JUNE ELIZABETH STEWART
Joseph J. Colangelo for the appellants
(Plaintiffs/Appellants)
- and -
DR. ALISON FREELAND
Laura B. Stewart for the respondent
(Defendant/Respondent)
Heard: November 6, 2006
On appeal from the order of Justice Albert J. Roy of the Superior Court of Justice dated October 3, 2005, with reasons reported at [2005] O.J. No. 4233.
GILLESE J.A.:
[1] Michael Stewart suffers from mental illness. Prior to May 27, 2002, he had been admitted to the Royal Ottawa Hospital (the “Hospital”) on a number of occasions, where he was diagnosed with schizophrenia.
[2] On May 27, 2002, police returned Michael to the Hospital as an involuntary patient pursuant to the Mental Health Act, R.S.O. 1990, c. M.7 (the “Act”). At all material times, Dr. Freeland, a staff psychiatrist at the Hospital, was Michael’s treating physician. Dr. Freeland provided Michael with treatment pursuant to the Act.
[3] On July 3, 2002, at approximately 11:00 am, Michael left the hospital grounds and took a taxi to his parents’ home in Renfrew.
[4] Despite the risk that Michael posed to himself and others, the Hospital did not immediately report his elopement to the police. Instead, it waited until approximately 5:00 pm that day to do so.
[5] At approximately 4 pm on July 3, while at the family home in Renfrew, Michael killed his mother.
[6] On January 2, 2003, June Stewart’s husband and children, excluding Michael (the “appellants”), started a civil action against the Hospital. On June 18, 2003, eleven months after June Stewart was killed, the appellants commenced a separate civil action against Dr. Freeland.
[7] Dr. Freeland brought a motion pursuant to rule 21.01(1) of the Rules of Civil Procedure to have the action against her dismissed as statute-barred. She relied on s. 78 of the Act which creates a six-month limitation period. Section 78 reads as follows:
- All actions, prosecutions or other proceedings against any person or psychiatric facility for anything done or omitted to be done in pursuance or intended pursuance of this Act or the regulations shall be commenced within six months after the act or omission complained of occurred and not afterwards.[^1]
[8] In response, the appellants moved for a declaration that the limitation period in s. 78 of the Act contravened s. 15(1) of the Charter or, alternatively, that s. 78 did not apply to their claim against Dr. Freeland.
[9] The motions were heard by Roy J. By order dated October 3, 2005, he granted Dr. Freeland’s motion and dismissed the appellants’ action against her. He held that the appellants’ claim against Dr. Freeland was subject to the six-month limitation period prescribed by s. 78 of the Act. As the appellants had not commenced their action within that six-month period, he held their claim to be statute-barred. He dismissed the appellants’ motion, holding that the six-month limitation period established by s. 78 did not contravene s. 15(1) of the Charter.
[10] The appellants ask this court to set aside the order below. They argue that the motion judge erred in failing to find s. 78 of the Act to be unconstitutional and in holding that s. 78 applies to their action against Dr. Freeland.
[11] In my view, the appeal should be allowed in part.
Section 15 of the Charter
[12] The motion judge held that s. 78 of the Act does not violate s. 15(1) of the Charter. I agree.
[13] The motion judge began by noting that the equality guarantee in s. 15(1) is comparative in nature and that discrimination does not exist in a vacuum. Claims of differential treatment and substantive discrimination can be evaluated only by a comparison between the claimants and an appropriate comparator group.
[14] In this case, the claimant group is the family of a mentally ill person where the family is suing a mental health professional who provides services at a mental health facility. The motion judge found, and I agree, that the proper comparator group was “families of non-mentally ill persons asserting an action pursuant to the Mental Health Act”. As he explains in para. 39 of his reasons:
Unfortunately for the plaintiffs, the comparator group [they] suggested is far too broad and does not conform to the criteria set out by the Supreme Court. The plaintiffs appear to be suggesting that the comparator group are those people seeking access to justice and recourse for any wrongful act. They argue that the correct comparator group is any plaintiff who is subject to a limitation period which is longer than the limitation period in the Mental Health Act. They conclude therefore that the claimant group, that is the family of mentally ill persons, suing a mental health facility or professional is being discriminated against.
[15] The motion judge then applied the three-step test for determining whether s. 15(1) of the Charter is violated.
Is there differential treatment under the law? The motion judge found that s. 78 of the Act does not draw any distinctions based on personal characteristics that would result in unequal treatment: the six-month limitation period applies equally to individuals and families with or without mental disabilities. Thus, there is no differential treatment. I agree.
Are there enumerated grounds or analogous grounds? The appellants’ claim of differential treatment is based on the enumerated ground of “mental disability” and the analogous ground of “family relationship”. As the motion judge held, there is no evidence that any of the appellants suffer from a mental disability. Therefore, they are not members of an enumerated group entitled to s. 15(1) protection. While Michael suffers from a mental illness, leaving aside the question of whether that falls within the meaning of “mental disability”, he is not a party to the litigation.
The motion judge stated, at para. 43 of his reasons, that “None of the jurisprudence referred to by the parties indicate that family relationships can be an analogous ground for the purposes of s. 15(1).” I agree and would add that this court recently expressed doubt as to whether family status could constitute an analogous ground for the purposes of s. 15(1) where the claim of the family members is based not on their own characteristics or identity but, rather, on the characteristics or identity of another member of the family. See Wynberg v. The Queen (2006), 2006 22919 (ON CA), 40 C.C.L.T. (3d) 176 (Ont. C.A.) at para. 206.
- Is s. 78 discriminatory in a substantive sense? The fundamental question to be asked is whether, taking the perspective of a reasonable person in circumstances similar to those of the claimants, the law has the effect of demeaning the claimants’ human dignity. The motion judge held that a reasonable person would not find that the human dignity of the appellants had been demeaned by s. 78 of the Act. Although briefly stated, I see no error in his determination.
[16] Like the motion judge, I am of the view that as none of the three steps are met, there is no need to consider s. 1 of the Charter.
Section 78 of the Act and the Duty to Warn
[17] Although Michael is not a plaintiff in the action, the statement of claim frames the action as allegations of negligence by Dr. Freeland in connection with the care and treatment that she provided to Michael while he was a patient at the Hospital. While less clear from the Statement of Claim, the appellants also allege that Dr. Freeland was negligent in that she breached her duty of care to June Stewart in various ways, including by failing to warn her of the threat to her safety caused by Michael leaving the Hospital grounds (hereafter compendiously referred to as the “duty to warn”).
[18] The motion judge held that Dr. Freeland’s alleged actions and inactions, including the duty to warn, flowed directly from the duties imposed upon the Hospital and her by the Act. Accordingly, he held that the claim for breach of those duties was subject to the limitation period in s. 78. In so concluding, the motion judge relied on Perez (Litigation Guardian of) v. Salvation Army (1997), 1997 12206 (ON SC), 37 O.R. (3d) 447 (Gen. Div.), aff’d (1998), 1998 7197 (ON CA), 42 O.R. (3d) 229 (C.A.).
[19] In Perez at p. 232, this court explained that the Act and regulations:
… clearly place a duty on psychiatric facilities to provide services to persons suffering from mental disorders. For patients in those facilities, those services include observation, care and treatment. The Act recognizes and gives statutory force to the duty to treat those who are patients in the facility.
[20] This court also considered the approach to be taken to s. 78. It will be recalled that s. 78 reads as follows:
- All actions, prosecutions or other proceedings against any person or psychiatric facility for anything done or omitted to be done in pursuance or intended pursuance of this Act or the regulations shall be commenced within six months after the act or omission complained of occurred and not afterwards. [emphasis added]
[21] After stating that statutory limitation periods like s. 78 are to be strictly construed, this court referred with approval to Fenton v. North York Electric Commission (1996), 1996 1102 (ON CA), 29 O.R. (3d) 481 (C.A.) at 485, in which the phrase “in pursuance of this Act” was held to refer “only to those acts done in direct execution of a statutory duty or acts which are necessarily incidental to the carrying out of a statutory duty”.
[22] There is no question but that Dr. Freeland acted in execution of her statutory duty when she provided Michael with care and treatment while he was at the Hospital. Thus, to the extent that the appellants’ action against Dr. Freeland is based on the care and treatment that she provided to Michael, bearing in mind my conclusion that s. 78 is constitutionally valid, the appellants’ action is statute-barred as it was brought after the six-month limitation period provided by s. 78.
[23] However, there is nothing in the Act that explicitly governs the obligations of health care providers to third parties who may be at risk of being harmed by a psychiatric patient. The respondent argues that if there is a duty to warn, it is “necessarily incidental” to the carrying out of a duty under the Act, as the psychiatric institution has an obligation to Michael and the public to see that he does not harm others. That may be. On the other hand, it may be that if there is a duty to warn, it arises only at common law. If so, it does not appear that it would be governed by s. 78.
[24] The respondent argues that this uncertainty is resolved by the statement of this court at p. 232 of Perez: “The fact that other statutes or the common law may also impose duties on some or all of the respondents which overlap with those imposed by the Act is of no consequence to the application of s. 78 of the Act”.
[25] At this stage of the proceedings, I do not see Perez as a full answer. In Perez, the hospital’s obligations under the Act and at common law overlapped. Here, the Act may not impose any duty on the respondent in relation to June Stewart.
[26] Perez was commenced after Albert Perez, an involuntary psychiatric patient at the Salvation Army Scarborough Grace Hospital, smashed a window in his third-floor hospital room and jumped off the window ledge to his death. His widow, children and other surviving family members brought a claim against the hospital alleging that it had failed to provide safe facilities for Mr. Perez and to properly supervise him. The hospital argued that the claim was statute-barred because it was commenced after the expiry of the six-month limitation period set out in s. 78 of the Act. Mr. Perez’s family responded that some of the matters at issue in their claim (e.g. inadequate staffing and escape protocols) did not relate to acts done “in pursuance” of the Act and that, therefore, s. 78 did not apply.
[27] Both the court of first instance and this court concluded that because the Perez family’s claim was based on alleged breaches of duties created by the Act, s. 78 applied and the claim was barred. Even though the Perez family’s claim raised some specific factual matters that were not regulated by the Act (such as whether the hospital had an obligation to bolt down the chairs in the hospital room), the case related entirely to the hospital’s over-arching duty to provide proper treatment to Mr. Perez. That is, the family’s claim was based entirely on alleged breaches of duties owed by the hospital to Mr. Perez, the patient. Because the family’s claim was based on purported deficiencies in the provision of services to the patient himself, s. 78 of the Act applied. In the present case, as previously explained, the claim is based not only on the provision of services to Michael but also on an alleged duty of care that Dr. Freeland may have owed to June Stewart, independent of her duties to Michael.
[28] The respondent in this case moved for an order dismissing the action on a question of law pursuant to rule 21.01. On such a motion, the action must not be struck unless it is “plain and obvious” that it cannot succeed. As it is not “plain and obvious” on the facts, as assumed from the pleadings, that the claim relating to the duty to warn cannot succeed, the action should be allowed to proceed in that regard.
[29] I would dismiss the appellants’ motion for a declaration that s. 78 is inapplicable to their action. Whether it applies to the alleged duty to warn owed by Dr. Freeland to June Stewart is a question better left for trial against a full evidentiary record. At that time, if it is held that the duty to warn arose both at common law and under the Act, the appellants are free to again make their argument based on in pari materia.
DISPOSITION
[30] Accordingly, I would allow the appeal in part. I would vary paragraph 1 of the order below to reflect that the appellants’ action is dismissed only as it relates to the negligence claim against Dr. Freeland in respect of the care and treatment of Michael. To the extent that the appellants’ claim is based on Dr. Freeland’s alleged negligence in respect of a duty of care to June Stewart, I would permit the action to continue.
[31] At the oral hearing of this appeal, I understood counsel for the appellants to acknowledge that if the action were permitted to continue on the duty to warn claim alone, the Statement of Claim would have to be amended. I agree. Therefore, I would order the appellants to file an amended claim, in conformity with these reasons, within 45 days of the date of release of these reasons.
[32] In light of the outcome of this appeal, I would delete the costs order in paragraph 3 of the order below. If the parties are unable to agree on costs below and in this court, they may make brief written submissions on the same within fourteen days of the date of the release of these reasons.
RELEASED: November 17, 2006 (“MJM”)
“E. E. Gillese J.A.”
“I agree M. J. Moldaver J.A.”
“I agree Janet Simmons J.A.”
[^1]: This provision has been repealed: Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 25.